C v C

Judgment Date27 November 1997
Subject MatterMatrimonial Causes
Judgement NumberFCMC7834/1997
CourtFamily Court (Hong Kong)
FCMC007834/1997 C v. C

FCDJ 7834 / 1997




NUMBER 7834 OF 1997









Coram: Deputy Judge Carlson in Chambers

Date of Hearing : 21 November 1997

Date of Judgment : 27 November 1997




1. In this suit the husband petitions for divorce on the ground that the parties have lived apart for a continuous period of at least two years. I shall refer to them as the husband and the wife. I have before me three summonses which I will identify in the order in which I intend to deal with them in the course of this judgment. Firstly, a summons dated 30th September 1997 by the wife for an order that the husband's petition be dismissed or alternatively stayed on the ground that it is an abuse of the process of the court; secondly a summons by the husband dated 11th October for an order in the form of an injunction restraining the wife from proceeding with a concurrent divorce suit in the Higher People's Court in Shanghai; and lastly a summons again by the husband, dated 20th November 1997 seeking directions for the hearing of his petition in terms of an order that the petition be set down as an undefended cause.

2. The matter was last before me on 9th October 1997 when I heard ex parte the husband's application for an injunction to restrain the wife from proceeding with her suit in Shanghai. On that occasion I gave a ruling in a form of a judgment granting the injunction asked for by him. His summons which is the second of the three which I have referred to is the inter partes hearing of that application. In respect of all three summonses Mr Cheung who appears for the wife had asked for an adjournment. It appears that he has been unable to communicate with his client since 6th October notwithstanding the fact that he has written to her at the former matrimonial home in Hong Kong on more than one occasion and made several telephone calls. I am satisfied that the wife was served with my order of 9th October in Shanghai and that she was represented before that court on 13th October when her divorce petition was adjourned. I have refused to adjourn these summonses because I took the view that the husband should not be further delayed in these applications simply because the wife has failed to be attentive to her own case. She has at all times been represented by Mr Cheung who has dealt with this matter diligently and competently. I found it extraordinary that she has taken no step to communicate with her solicitors since 6th October notwithstanding that she would have been well aware of the ongoing nature of the proceedings before this court and particularly after she was served with my order of 9th October.

3. I now turn to the merits of the wife's application to strike out and / or stay the husband's petition. The essence of her case is that where she has filed her divorce petition in Shanghai prior to the husband's petition before this court the more appropriate jurisdiction is in Shanghai. That application is supported by an affirmation by her dated 6th October 1997 appearing at pg. 64 of the court's bundle. Before I go into the matter in more detail, it is helpful to adopt the relevant chronology and background which is set out in my ruling of 9th October last from pages 2 to 4.

"These parties were married in China on 8th October 1971. They have three children who are grown up; two are still being educated at universities in Canada and their other child is, in fact, also grown up and working in Hong Kong. They came to live in Hong Kong in 1980, and by 1982 they had acquired sufficient capital to set up a number of businesses here, and they were able to purchase what was to become their matrimonial home in McDonnell Road in 1986. In 1989 they emigrated to Canada, and whilst they remained in Canada for a sufficient period in order to comply with that country's immigration procedures, they continued to return to Hong Kong and spend time in Hong Kong looking after their various businesses. It would appear that from 1989 they have also invested in a number of businesses in China, and that they have also purchased a flat, amongst other properties, in Shanghai.

The marriage appears to have broken down in June of 1995, when the husband left the matrimonial home and went to live at another address in Hong Kong.

The wife petitioned for divorce on 20th September 1996 by a petition in the Shanghai People's Middle Court, and the husband then applied to that court to have that petition struck out on the basis that that court had no jurisdiction. On 12th November 1996, the Shanghai Court held that it did have jurisdiction. Put briefly, the point was that the husband was alleging that the court in Shanghai had no jurisdiction because the parties were not resident in China, and he appealed to the Supreme Court of the People's Republic of China sitting in Peking. That appeal was heard on 9th April 1997, and I have seen the judgment of that court. The Supreme Court reversed the decision of the court in Shanghai, holding that the court in Shanghai had no jurisdiction on the basis that, in fact, the parties were not resident in China.

Notwithstanding that, the wife came again on 28th June of this year. She has filed another petition before, I think, the High Court in Shanghai and her divorce has been listed for 13th October, which is next Monday.

The next matter of importance so far as this application is concerned, is that the husband has petitioned for divorce before this court on the basis that the parties have lived apart for a continuous period of at least two years prior to presentation of the petition. His petition is dated 1st August 1997. The wife did not enter an acknowledgement of service in the usual way, and from the papers it would appear that there was some difficulty in satisfying the court that she had been served. An application had to be made to His Honour Judge Bruno CHAN, who held that the wife had been properly served.

Then on 30th September, the wife took out a summons which is returnable on 21st October, seeking a dismissal of the petition in this court on the basis that the court in Shanghai is the appropriate forum. On the same day the husband took out a summons, which was heard on 6th October by Deputy Judge Day, seeking a decree nisi on the husband's petition forthwith. I observe that there was something of an unusual application to make and it comes as no surprise that it failed before the learned Deputy Judge. I have said enough from the chronology to indicate that something of a litigation race appears to have developed.

The husband, having failed to obtain a decree nisi forthwith before Judge Day then took out this summons to restrain the wife from pursuing her petition before the courts of Shanghai. I should make absolutely clear that if I thought it right to make an order in the form asked for by the husband that would of course in no way bind the court in...

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